Missing God in Some Things: The NLRB s Jurisdictional Test Fails to Grasp the Religious Nature of Catholic Colleges and Universities

Boston College Law Review Volume 55 Issue 2 Article 7 3-28-2014 Missing God in Some Things: The NLRB s Jurisdictional Test Fails to Grasp the Religious Nature of Catholic Colleges and Universities Nicholas Macri Boston College Law School, nicholas.macri@bc.edu Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the Civil Rights and Discrimination Commons, Education Law Commons, Jurisdiction Commons, Labor and Employment Law Commons, and the Religion Law Commons Recommended Citation Nicholas Macri, Missing God in Some Things: The NLRB s Jurisdictional Test Fails to Grasp the Religious Nature of Catholic Colleges and Universities, 55 B.C.L. Rev. 609 (2014), http://lawdigitalcommons.bc.edu/bclr/vol55/iss2/7 This Notes is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact nick.szydlowski@bc.edu.

MISSING GOD IN SOME THINGS: THE NLRB S JURISDICTIONAL TEST FAILS TO GRASP THE RELIGIOUS NATURE OF CATHOLIC COLLEGES AND UNIVERSITIES Abstract: The National Labor Relations Board (NLRB) uses a substantial religious character test to determine whether it is authorized to exercise jurisdiction over faculty labor relations at religiously affiliated colleges and universities. Under the NLRB s test, a school is not considered religious unless it makes religious indoctrination one of its primary purposes, denies faculty members academic freedom, and discriminates based on religion when hiring faculty and admitting students. Such an approach fails to recognize the religious nature of Catholic institutions of higher learning, which carry out their religious missions precisely by avoiding religious indoctrination, granting faculty academic freedom, and welcoming faculty and students of all faiths. Underlying the NLRB s test is the understanding that church-state entanglement concerns are not present when faculty members do not play a role in carrying out their school s religious mission. Thus, this Note proposes a new jurisdictional test that evaluates whether faculty play such a role. Under this proposed test, the NLRB would not be authorized to exercise jurisdiction only if the college holds itself out as religious and requires its faculty to carry out its religious mission. INTRODUCTION Saint Xavier University and Manhattan College are fairly typical American Catholic institutions of higher learning. 1 In their mission statements, they affirm their Catholic identity and how their ways of educating their students are inspired by the traditions of the Catholic religious order upon which they 1 See St. Xavier Univ., No. 13-RC-22025, 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *3 16 (N.L.R.B. May 26, 2011) (discussing the religious characteristics of Saint Xavier University); Manhattan Coll., No. 2-RC-23543, 2011 NLRB Reg. Dir. Dec. LEXIS 94, at *4 25 (N.L.R.B. Jan. 10, 2011) (discussing the religious characteristics of Manhattan College); Brief for Ass n of Catholic Colleges & Universities, Lasallian Ass n of College and University Presidents, and Ass n of Jesuit Colleges and Universities as Amici Curiae Supporting Employer at 11 17, Manhattan Coll., No. 2- RC-23543 (N.L.R.B. Jan 10, 2011) [hereinafter Catholic Colleges Brief], available at https:// manhattan.edu/sites/default/files/accu-lacup-and-ajcu-amicus-brief.pdf, archived at http:// perma.cc/4nd-s9b4 (noting the ways in which American Catholic colleges and universities carry out their religious missions). See generally Susan J. Stabile, Blame It on Catholic Bishop: The Question of NLRB Jurisdiction over Religious Colleges and Universities, 39 PEPP. L. REV. 1317 (2013) (using the examples of Manhattan College and Saint Xavier to illustrate the difficulties that the National Labor Relations Board s jurisdictional test poses for Catholic institutions of higher learning). 609

610 Boston College Law Review [Vol. 55:609 were founded. 2 Both colleges offer courses in Catholic theology, and Saint Xavier explicitly educates its students in light of the Catholic Church s vision for its universities. 3 In addition, their local archdioceses recognize them as Catholic colleges. 4 In the eyes of the National Labor Relations Board (NLRB), however, neither of these Catholic schools is sufficiently religious. 5 The NLRB s conclusions as to the religious nature of these institutions came about in hearings to determine whether the NLRB, pursuant to the National Labor Relations Act (NLRA), was authorized to exercise jurisdiction over the labor relations between the colleges and their adjunct faculty unions. 6 At separate administrative hearings before NLRB Regional Directors, the schools argued that they were exempt from NLRB jurisdiction under the reasoning of the 1979 U.S. Supreme Court case NLRB v. Catholic Bishop of Chicago. 7 In that case, the Court noting the substantial religious character of parochial schools and the role that 2 See St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *11 12 (noting that Saint Xavier which is affiliated with the Sisters of Mercy characterizes itself as a Catholic institution that educates men and women to search for truth, to think critically, to communicate effectively, and to serve wisely and compassionately in support of human dignity and the common good ); Manhattan Coll., 2011 NLRB Reg. Dir. Dec. LEXIS 94, at *15 (noting that Manhattan College which is affiliated with the De La Salle Christian Brothers characterizes itself as an independent Catholic institution that is founded upon the Lasallian tradition of excellence in teaching, respect for individual dignity, and commitment to social justice ). 3 See St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *14, *21; Manhattan Coll., 2011 NLRB Reg. Dir. Dec. LEXIS 94, at *13. In a hearing before a Regional Director of the NLRB, the provost of Saint Xavier testified that the school was guided by the principles of Ex Corde Ecclesiae, a Vatican document that outlines the Catholic Church s vision for its colleges and universities. See St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *9; JOHN PAUL II, APOSTOLIC CONSTITUTION EX CORDE ECCLESIAE (1990) [hereinafter EX CORDE] (outlining the Catholic Church s vision for its colleges and universities). 4 See St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *4; Manhattan Coll., 2011 NLRB Reg. Dir. Dec. LEXIS 94, at *4. 5 See Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1343 (D.C. Cir. 2002) (stating that the NLRB s test asks whether a college is sufficiently religious ); St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *2 (deciding that Saint Xavier is not a church-operated institution ); Manhattan Coll., NLRB Reg. Dir. Dec. LEXIS 94, at *31 (same); Stabile, supra note 1, at 1326 (stating that the NLRB s test boils down to whether the school is sufficiently religious and using Manhattan College and Saint Xavier as examples of Catholic institutions of higher learning that do not satisfy the NLRB s test (quoting Univ. of Great Falls, 278 F.3d at 1343)); G. Jeffrey MacDonald, Catholic College Faces Crisis of Faith, Labor Laws, USA TODAY (Feb. 10, 2011, 4:36 PM), http://usatoday30. usatoday.com/news/religion/2011-02-11-catholic_labor_union_10_st_n.htm, archived at http://perma. cc/nk22-au7l (stating that the NLRB isn t convinced that [Manhattan College] is actually Catholic ). 6 See St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *1 2; Manhattan Coll., NLRB Reg. Dir. Dec. LEXIS 94, at *1 3; Stabile, supra note 1, at 1318. The NLRA was enacted in 1935 to promote the rights of employees and encourage collective bargaining; specifically, it grants private sector employees the right to form unions and collectively bargain. National Labor Relations Act, 29 U.S.C. 151 169 (2012). 7 See 440 U.S. 490, 507 (1979); St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *1; Manhattan Coll., 2011 NLRB Reg. Dir. Dec. LEXIS 94, at *1 2.

2014] NLRB Jurisdiction over Religiously Affiliated Colleges and Universities 611 teachers play in fulfilling their religious missions held that given the churchstate entanglement concerns raised by NLRB jurisdiction over churchoperated schools, Congress did not intend the NLRB to oversee the labor relations of teachers at religious high schools. 8 Despite arguments from the colleges that they should be exempt from NLRB jurisdiction, the NLRB Regional Directors determined in separate administrative hearings that jurisdiction over these religiously affiliated colleges was appropriate. 9 Using the jurisdictional test the NLRB has developed since Catholic Bishop, the Regional Directors in both cases made these determinations after concluding that the schools were not substantially religious in nature. 10 The Regional Directors reached these conclusions by considering several factors about the colleges. 11 First, in both cases they determined that the colleges primary purposes to educate were secular, not religious. 12 Second, both colleges did not require students or faculty to be practicing Catholics, uphold loyalty oaths, or take courses in Catholic theology. 13 Third, faculty members were granted academic freedom, were not hired or fired based on their religious beliefs, and were not hired to inculcate faith in their students. 14 Finally, each school was governed by a board of trustees whose membership was comprised mostly of individuals who were not priests or members of a religious order. 15 For these reasons, the Regional Directors determined that the schools were not so substantially religious in nature that invoking jurisdiction over them would raise the types of Establishment Clause infringement concerns that the Supreme Court sought to avoid in Catholic Bishop. 16 Today, the 8 See Catholic Bishop, 440 U.S. at 501 05, 507 (citing Lemon v. Kurtzman, 403 U.S. 602, 617 (1971)); infra notes 45 51 and accompanying text (discussing the Court s decision in Catholic Bishop). 9 See St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *2; Manhattan Coll., 2011 NLRB Reg. Dir. Dec. LEXIS 94, at *1 2. 10 See St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *20; Manhattan Coll., 2011 NLRB Reg. Dir. Dec. LEXIS 94, at *2; infra notes 52 62 and accompanying text (discussing the NLRB s substantial religious character test). 11 See St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *20 24; Manhattan Coll., 2011 NLRB Reg. Dir. Dec. LEXIS 94, at *31 33; infra notes 12 15 and accompanying text (discussing the factors the NLRB considered). 12 See St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *20; Manhattan Coll., 2011 NLRB Reg. Dir. Dec. LEXIS 94, at *31. 13 See St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *13 14; Manhattan Coll., 2011 NLRB Reg. Dir. Dec. LEXIS 94, at *20. 14 See St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *21 22; Manhattan Coll., 2011 NLRB Reg. Dir. Dec. LEXIS 94, at *25, *35. 15 See St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *23; Manhattan Coll., 2011 NLRB Reg. Dir. Dec. LEXIS 94, at *3 5, *30 31. 16 See St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *2; Manhattan Coll., 2011 NLRB Reg. Dir. Dec. LEXIS 94, at *1 2; see also U.S. CONST. amend. I ( Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.... ).

612 Boston College Law Review [Vol. 55:609 determinations by the NLRB Regional Directors in both cases are under appeal. 17 As evidenced by the cases regarding Saint Xavier and Manhattan College, the NLRB s use of the substantial religious character test presents unique challenges for Catholic colleges and universities. 18 The NLRB s test assumes that a college does not have a religious mission unless it engages in hard-nosed proselytizing, denies faculty academic freedom, and discriminates on the basis of religion when admitting students and hiring faculty. 19 Such an approach, however, fails to recognize the religious nature of Catholic colleges and universities, which carry out their religious missions precisely by eschewing a narrow focus on religious indoctrination, granting faculty academic freedom, and opening their doors to non-catholic students and faculty. 20 Underlying the NLRB s jurisdictional test is the understanding that the indoctrination of faith is not a primary purpose of many religiously affiliated colleges and universities and that, as a result, the faculty members at these colleges are not necessarily tasked with carrying out the religious missions of their schools. 21 As the NLRB s test correctly assumes, when faculty play no 17 See Order Granting Emp r s Request for Review of the Reg l Dir. s Decision and Direction of Election, St. Xavier Univ., No. 13-RC-22025, 2011 NLRB Reg. Dir. Dec. LEXIS 350 (N.L.R.B. July 13, 2011); Order Granting Emp r s Request for Review of the Acting Reg l Dir. s Decision and Direction of Election, Manhattan Coll., No. 2-RC-23543, 2011 NLRB Reg. Dir. Dec. LEXIS 94 (N.L.R.B. Feb. 16, 2011); Stabile, supra note 1, at 1318 (discussing how the decisions involving both colleges are on appeal to the NLRB s full board). 18 See St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *20 24 (discussing factors that indicated that Saint Xavier was not substantially religious); Manhattan Coll., 2011 NLRB Reg. Dir. Dec. LEXIS 94, at *33 35 (discussing Manhattan College s objections to the NLRB s understanding of what makes a college substantially religious); Catholic Colleges Brief, supra note 1, at 12 (stating that the NLRB Regional Director hearing Manhattan College s case misunderstood the nature of Catholic higher education in the United States); Stabile, supra note 1, at 1327 ( The NLRB s current approach is particularly problematic when applied to Catholic colleges and universities. ). 19 See Univ. of Great Falls, 278 F.3d at 1346 47 ( [I]t is hard to see what school or university that does not require attendance at religious services, or require students and faculty to be of a particular faith, would qualify for Catholic Bishop exemption. ); see also Stabile, supra note 1, at 1327 (stating that the NLRB s approach makes assumptions about what it means to be a religious entity and what it means to provide a religious education and noting that, according to the Board, a university is not religious if propagation of a religious faith is not its primary purpose, if students and faculty are not required to engage in worship, or if the school welcomes people of other faiths ). 20 See Catholic Colleges Brief, supra note 1, at 4; Stabile, supra note 1, at 1327. See generally EX CORDE, supra note 3 (outlining the Catholic Church s vision for how its colleges and universities should carry out their religious missions); Eugenio Scalfari, The Pope: How the Church Will Change, LA RE- PUBBLICA (Oct. 1, 2013), http://www.repubblica.it/cultura/2013/10/01/news/pope_s_conversation_ with_scalfari_english-67643118/, archived at http://perma.cc/9jml-vss7 (quoting Pope Francis as saying [p]roselytism is solemn nonsense ). 21 See St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *20 (stating that the risk of impermissible infringement is minimized when faculty members are not required to... promote church teachings ); Manhattan Coll., 2011 NLRB Reg. Dir. Dec. LEXIS 94, at *35 (stating that the risk of impermissible church-state entanglement is obviated at a college in which teachers are not required to adhere to or promote religious tenets ); Brief for the National Labor Relations Board at

2014] NLRB Jurisdiction over Religiously Affiliated Colleges and Universities 613 role in carrying out their school s religious mission, NLRB jurisdiction does not raise the types of church-state entanglement concerns that the Supreme Court warned of in Catholic Bishop. 22 Nevertheless, the NLRB s jurisdictional test does not necessarily measure whether faculty members actually play a role in carrying out their college s religious mission. 23 Instead, the NLRB s current test merely measures the extent to which a college comports with the Board s understanding of how a religiously affiliated institution should carry out its religious mission. 24 This Note proposes an alternative two-part test to the NLRB s current jurisdictional test that seeks to evaluate whether faculty members actually play a role in carrying out their college s religious mission. 25 Under the first part of 30 31, Univ. of Great Falls, 278 F.3d 1335 (No. 00-1415) [hereinafter NLRB Brief] (citing Tilton v. Richardson, 403 U.S 672, 687 (1971)) (stating that unlike the case at parochial schools, religious indoctrination is usually not the purpose of a religiously affiliated college or university); Stabile, supra note 1, at 1328 (stating that the NLRB s substantial religious character test is used as a proxy to determine whether the exercise of jurisdiction over a religiously affiliated college or university would risk impermissible church-state entanglement); see also Debra L. Willen, NLRB Regulation of Religiously-Affiliated Schools: The Board s Current Jurisdictional Test, 13 INDUS. REL. L.J. 38, 41 (1991) (arguing that the risk of impermissible church-state entanglement arises only in the context of NLRB jurisdiction over schools in which religious indoctrination is part of their mission). 22 See St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *20 (stating that the risk of impermissible infringement is minimized when faculty members are not required to... promote church teachings ); Manhattan Coll., 2011 NLRB Reg. Dir. Dec. LEXIS 94, at *35 (stating that the risk of impermissible church-state entanglement is obviated at a college in which teachers are not required to adhere to or promote religious tenets ); Stabile, supra note 1, at 1320 21, 1343 45 (arguing that Catholic Bishop does not preclude NLRB jurisdiction over all religiously affiliated colleges, and proposing a new approach to jurisdictional determinations that evaluates the extent to which NLRB oversight would create excessive church-state entanglement); Anne Marie Cook et al., Comment, Constitutional Law Universidad Central de Bayamon v. National Labor Relations Board: Jurisdiction over Religious Colleges and Universities The Need for Substantive Constitutional Analysis, 62 NOTRE DAME L. REV. 255, 273 (1987) (arguing that NLRB jurisdiction over religiously affiliated colleges would not create impermissible church-state entanglement because faculty do not play the same role in carrying out their school s religious mission as teachers at parochial schools do). 23 See Stabile, supra note 1, at 1320 21; infra notes 158 162 (discussing, in part, how the NLRB s test fails to evaluate the extent to which faculty play a role in carrying out their school s religious mission); see also Elizabeth Tucker Bradley, Comment, A New Approach to NLRB Jurisdiction over the Employment Practices of Religious Institutions, 54 U. CHI. L. REV. 243, 244 (1987) (arguing that jurisdictional tests should be based on the nature of the employees work and not the religious nature of the organization). 24 See Catholic Colleges Brief, supra note 1, at 4 (stating that the substantial religious character test invites government officials to substitute their views about an institution s religious character for the judgment of the institution and its religious community ); Stabile, supra note 1, at 1328 ( Focusing on the character of the institution as a proxy for focusing directly on the issue of entanglement, however, requires the Board to make judgments about what it means for an institution to possess a religious character. ). 25 See infra notes 137 141 and accompanying text (laying out the proposed test). This Note assumes that impermissible church-state entanglement would not be present with NLRB jurisdiction over the labor relations of faculty members who are not tasked with carrying out their school s religious mission. See Stabile, supra note 1, at 1329, 1343 45 (arguing that Catholic Bishop does not preclude NLRB jurisdiction over all religiously affiliated colleges, and advocating for an alternative

614 Boston College Law Review [Vol. 55:609 this test, the NLRB would evaluate whether the college or university qualifies as religious under the approach adopted in 2002 by the U.S. Court of Appeals for the D.C. Circuit in University of Great Falls v. NLRB. 26 A college would satisfy the first part of this test so long as it: (1) holds itself out as religious; (2) is organized as a nonprofit; and (3) is affiliated with a religious institution. 27 Under the second part of this test, the NLRB would simply ask whether the college or university requires its faculty members to play a role in carrying out the school s religious mission. 28 If a religiously affiliated college satisfies both parts of this test, the NLRB would be unable to exercise jurisdiction over the school s labor relations with its faculty members. 29 This approach would improve the NLRB s test because it merely evaluates whether faculty play a role in carrying out their school s religious mission rather than evaluating how a school carries out that mission and therefore avoids an improper inquiry into the school s religious nature. 30 Part I of this Note discusses the evolution of the NLRB s substantial religious character test and how two circuit courts have rejected the NLRB s approach. 31 Part II then explains how the assumptions behind the NLRB s substantial religious character test fail to recognize the ways in which Catholic colleges and universities carry out their religious missions. 32 Finally, Part III proposes a new two-part test to evaluate the circumstances under which NLRB jurisdiction over religiously affiliated colleges and universities is appropriate. 33 I. THE NLRB S SUBSTANTIAL RELIGIOUS CHARACTER TEST: ITS EVOLUTION AND SUBSEQUENT REJECTION BY THE COURTS The NLRB uses the substantial religious character test to determine, on a case-by-case basis, whether it is authorized to exercise jurisdiction over the approach that would more directly evaluate whether NLRB jurisdiction over a particular school would cause an impermissible risk of infringement or church-state entanglement); see also Kathleen A. Brady, Religious Organizations and Mandatory Collective Bargaining Under Federal and State Labor Laws: Freedom from and Freedom for, 49 VILL. L. REV. 77, 80 (2004) (recognizing that the risks of impermissible church-state entanglement caused by collective bargaining rules can be minimized through the implementation of rules that protect religious employers). But see Kenneth W. Brothers, Note, Church-Affiliated Universities and Labor Board Jurisdiction: An Unholy Union Between Church and State, 56 GEO. WASH. L. REV. 558, 591 98 (1988) (arguing that the imposition of collective bargaining rules over religiously affiliated universities would impinge their ability to operate their school in accordance with their religious missions). 26 See 278 F.3d at 1343; infra notes 147 162 and accompanying text (discussing the first part of the proposed test). 27 See Univ. of Great Falls, 278 F.3d at 1343; infra notes 147 162 and accompanying text. 28 See infra notes 163 176 and accompanying text. 29 See infra note 141 and accompanying text. 30 See infra note 143 and accompanying text. 31 See infra notes 34 95 and accompanying text. 32 See infra notes 96 132 and accompanying text. 33 See infra notes 133 176 and accompanying text.

2014] NLRB Jurisdiction over Religiously Affiliated Colleges and Universities 615 labor relations of faculty members at a religiously affiliated college or university. 34 When the Board determines that it is authorized to exercise jurisdiction, the employer in this case, a religiously affiliated college or university is required to recognize the employee union and enter into collective bargaining with the union s representatives in accordance with the NLRA s rules. 35 Among these rules is the requirement that the college and its faculty union engage in good faith collective bargaining over working conditions such as wages, hours, and work rules. 36 The failure of the employee union or employer to comply with these rules constitutes an unfair labor practice under the NLRA. 37 The Board s use of the substantial religious character test reflects the understanding that there are circumstances in which exercising its jurisdiction would implicate First Amendment Establishment Clause concerns. 38 Under the Establishment Clause, the government is prohibited from becoming excessively entangled with religion. 39 In the context of religiously affiliated colleges and universities, entanglement concerns can arise when religious considerations are part of a faculty member s terms of employment or when a school reserves the right to discipline faculty members based on religious grounds. 40 34 See St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *18 (citing St. Joseph s Coll., 282 N.L.R.B. 65, 68 (1986)). Although the NLRB s jurisdiction over private sector employers is broad and covers most nongovernment employers, the Board is not authorized to exercise jurisdiction over employees of religious organizations who carry out their employer s religious mission such as teachers at parochial schools. See 29 U.S.C. 151 152 (2012) (granting the NLRB broad jurisdiction); Jurisdictional Standards, NAT L LABOR REL. BOARD, https://www.nlrb.gov/rights-we-protect/ jurisdictional-standards, archived at http://perma.cc/7f8d-tr29 (last visited Mar. 22, 2014) (stating the limits of NLRB jurisdiction over employees who carry out their employer s religious mission); see also Catholic Bishop, 440 U.S. at 507 (holding that the NLRB is not authorized to exercise jurisdiction over the labor relations of faculty members at parochial schools). The Board, however, does assert jurisdiction over employees who work in the operations of a religious organization that [does] not have a religious character, such as a health care institution. See Jurisdictional Standards, supra. 35 See 29 U.S.C. 158(d) (2012); Stabile, supra note 1, at 1322. See generally National Labor Relations Act, 29 U.S.C. 151 169 (2012) (outlining federal collective bargaining rules and granting the NLRB jurisdiction over collective bargaining disputes). The NLRA grants private sector employees the right to form labor unions and collectively bargain. 29 U.S.C. 157; see Stabile, supra note 1, at 1321. It also requires private sector employers to recognize and collectively bargain with employee representatives. Id. 157 158; see Stabile, supra note 1, at 1322. 36 See 29 U.S.C. 158(d); Stabile, supra note 1, at 1322; Employer/Union Rights and Obligations, NAT L LABOR REL. BOARD, https:/www.nlrb.gov/rights-we-protect/employerunion-rights-obligations, archived at http://perma.cc/d54y-lq9g (last visited Mar. 22, 2014). 37 29 U.S.C. 158. 38 See St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *18 (quoting St. Joseph s Coll., 282 N.L.R.B. at 68 n.10) (discussing the Board s recognition that there are circumstances in which jurisdiction would implicate First Amendment concerns). 39 See U.S. CONST. amend. I.; Lemon, 403 U.S. at 613 15 (establishing an entanglement test that evaluates, in part, the character and purposes of the religious institutions and the resulting relationship between the government and the religious authority ). 40 See Universidad Cent. de Bayamon v. NLRB, 793 F.2d 383, 401 02 (1st Cir. 1986) (en banc) (citing Catholic Bishop, 440 U.S. at 502) (concluding that church-state entanglement concerns can arise in these two contexts); Manhattan Coll., 2011 NLRB Reg. Dir. Dec. LEXIS 94, at *35 (citing

616 Boston College Law Review [Vol. 55:609 This Part explores the evolution of the NLRB s jurisdictional test over faculty members at religiously affiliated colleges and universities. 41 Section A discusses the Supreme Court s decision in Catholic Bishop, which curtailed NLRB jurisdiction over parochial schools. 42 Next, Section B discusses how the NLRB has applied the Court s reasoning in Catholic Bishop to cases involving religiously affiliated colleges and universities. 43 Finally, Section C explains how subsequent lower courts have interpreted the scope of the NLRB s jurisdiction over religiously affiliated colleges and universities in light of Catholic Bishop. 44 A. Catholic Bishop Restricts the NLRB s Ability to Assert Jurisdiction over Parochial Schools In Catholic Bishop, the Supreme Court held that the NLRB was not authorized to exercise jurisdiction over the labor relations of teachers at parochial high schools. 45 Noting the substantial religious character and purpose of parochial schools, along with the critical and unique role that teachers play in fulfilling the mission of these schools, the Court voiced its concerns that First Amendment church-state entanglement disputes would be unavoidable if the Board exercised jurisdiction over teachers at these church-operated Catholic Bishop, 440 U.S. at 501 02) (stating that rules requiring faculty to propagate faith would require bargaining over such rules and their disciplinary consequences, and further, would require the Board to scrutinize an employer s defense to unfair labor practice charges based on asserted enforcement of faith-based rules ); infra notes 68 70 and accompanying text (discussing entanglement concerns with NLRB inquiries into the religious principles of a college); see also Brothers, supra note 25, at 592 (arguing that the imposition of collective bargaining rules over religiously affiliated universities would impinge their ability to operate their schools in accordance with their religious missions). But see Stabile, supra note 1, at 1334, 1336 (arguing that the Supreme Court in Catholic Bishop overstated the risk of impermissible church-state entanglement caused by NLRB jurisdiction over parochial schools, stating that NLRB oversight does not: (1) force schools to negotiate over religious considerations, or (2) require the Board to wade through a school s religious principles); Cook et al., supra note 22, at 270 73 (arguing that NLRB jurisdiction over religiously affiliated colleges would not create impermissible church-state entanglement). One commentator has noted how requiring Catholic institutions to engage in collective bargaining also implicates First Amendment concerns because the adversarial nature of collective bargaining runs counter to the Church s understanding of the proper relationship between labor and management. See Brady, supra note 25, at 80 81 (stating that the NLRA s adversarial approach to collective bargaining is deeply at odds with the Church s basic vision for social life, and arguing that adherence to NLRA rules would prevent the Church from carrying out its vision for the proper relationship between management and workers). But see Stabile, supra note 1, at 1342 (noting that NLRA rules do not prevent Catholic institutions from bargaining with their workers in a way that is consistent with the Church s vision for labor relations). 41 See infra notes 45 95 and accompanying text. 42 See infra notes 45 51 and accompanying text. 43 See infra notes 52 62 and accompanying text. 44 See infra notes 63 95 and accompanying text. 45 See 440 U.S. at 507. The Court rejected the NLRB s test at the time, which authorized jurisdiction over merely religiously associated schools, but not completely religious schools. Id. at 495, 507.

2014] NLRB Jurisdiction over Religiously Affiliated Colleges and Universities 617 schools. 46 Specifically, the Court noted that future NLRB inquiries into unfair labor complaints could implicate a school s religious beliefs because they would require the Board to evaluate the good faith of the position asserted by the clergy-administrators and its relationship to the school s religious mission. 47 In addition, the Court expressed fear that the conclusions reached by the Board, along with the way in which the Board examined the religious practices of the school, could infringe upon the First Amendment rights of the school. 48 Moreover, the Court could not find any congressional authority intending NLRB jurisdiction to apply to parochial schools. 49 Because of this lack of intent, along with the First Amendment concerns raised, the Court concluded that the NLRA should not be read to confer the Board with such jurisdiction. 50 46 Id. at 501, 503 04 (quoting Lemon, 403 U.S. at 616; id. at 628 (Douglas, J. concurring)). The Court in Catholic Bishop also stated that the raison d être of these schools is the propagation of the faith. 440 U.S. at 503 (quoting Lemon, 403 U.S. at 628 (Douglas, J. concurring)). 47 Id. at 502. The Court reasoned that the NLRB would be required to examine a school s religious beliefs to determine if disciplinary actions against a teacher were genuinely based on religious grounds. Id. 48 Id. at 502 03 ( Inevitably the Board s inquiry will implicate sensitive issues that open the door to conflicts between clergy-administrators and the Board, or conflicts with negotiators for unions. ). The Court cautioned that investigations into how a parochial school carries out its religious mission by asking, for example, whether religious services must be conducted at parochial schools implicate First Amendment concerns. See id. at 502, 507 08 (providing an example of this type of suspect inquiry). 49 See id. at 504 07. After reviewing the legislative history of the NLRA, including its subsequent revisions, the Court concluded that the legislation did not grant the Board jurisdiction because Congress did not affirmatively intend for the Board to have jurisdiction over the employment conditions of parochial school teachers. Id. The Court concluded that without such intent, Congress did not envision the Board requiring church-operated schools to collectively bargain with their faculty representatives. Id. at 506. The Court pointed to several factors to reach this conclusion. Id. at 504 07. First, Congress s intent in passing the NLRA was to regulate labor in private industry. Id. at 504 (citing 79 CONG. REC. 7573 (1935) (statement of Sen. Robert Wagner), reprinted in 2 NATIONAL LABOR RELA- TIONS BOARD, LEGISLATIVE HISTORY OF THE NATIONAL LABOR RELATIONS ACT, 1935, at 2341 43 (1949)). Second, the Court cited the legislative history of the NLRA in which the Senate Committee on Education and Labor explained that a college professor is an example of someone whose employment is not covered by the NLRA. Id. at 504 05 (citing S. REP. NO. 573, at 7 (1935), reprinted in 2 NATIONAL LABOR RELATIONS BOARD, supra, at 2307). Third, the majority discussed the legislative history preceding a 1974 amendment to the NLRA, which removed an NLRB exemption for nonprofit religious hospitals. Id. at 505 06 (citing 120 CONG. REC. 12,946, 16,914 (1974) (statements of Sen. Sam Ervin and Rep. John Erlenborn)). Because Congress, in this amendment, did not address parochial schools, the Court concluded that Congress did not affirmatively intend for the Board to authorize jurisdiction over these schools. Id. 50 Id. at 507. Justice William J. Brennan, Jr., who was joined by three other justices, argued in a dissenting opinion that the NLRA granted the Board jurisdiction over lay teachers at parochial schools. Id. at 508 (Brennan, J., dissenting). The dissent maintained that the majority s interpretation of the NLRA was not fairly possible. Id. at 511. Justice Brennan pointed to several factors in reaching his conclusion, including that: (1) a 1947 amendment to the NLRA which would have exempted religious employers was not passed; (2) the NLRA covers all employers not expressly exempted in the legislation; and (3) Supreme Court precedent holds that the NLRA should be viewed as broadly as

618 Boston College Law Review [Vol. 55:609 Based on this reasoning, the majority concluded that the NLRA did not grant the NLRB jurisdiction over parochial schools. 51 B. Following Catholic Bishop, the NLRB Develops the Substantial Religious Character Test The NLRB at first concluded that the Supreme Court s determination in Catholic Bishop regarding parochial schools did not apply to religiously affiliated colleges and universities. 52 Since 1986, however, the NLRB has applied the reasoning from Catholic Bishop to institutions of higher learning on a caseby-case basis. 53 To determine whether the NLRB may exercise jurisdiction, the Board based on the language in Catholic Bishop evaluates whether the school has a substantial religious character. 54 This inquiry, still in use today, evaluates all facets of the school to determine if NLRB jurisdiction would raise serious First Amendment concerns of church-state entanglement. 55 possible as allowed by the Constitution s Commerce Clause. Id. at 511 16; see U.S. CONST. art. 1, 8, cl. 3. 51 Catholic Bishop, 440 U.S. at 507. The Court s decision in Catholic Bishop has faced criticism for using a clear statement approach to infer a lack of congressional intent for the NLRB to exercise jurisdiction over faculty at religious high schools. See, e.g., David L. Gregory & Charles J. Russo, The First Amendment and the Labor Relations of Religiously Affiliated Employers, 8 B.U. PUB. INT. L.J. 449, 467 (1999) (arguing that the Supreme Court s decision in Catholic Bishop denied the First Amendment rights of employees to organize); Marisela Pena, Comment, The Catholic Union Dichotomy: Are the Catholic Church s First Amendment Rights and the Collective Bargaining Rights of Catholic Church Employees Mutually Exclusive?, 42 HOUS. L. REV. 165, 193 95 (2005) (arguing that the NLRA does not violate the Church s First Amendment rights... simply by giving workers the right to bargain collectively and proposing that the NLRA be revised to overturn Catholic Bishop); Robert J. Pushaw, Jr., Note, Labor Relations Board Regulation of Parochial Schools: A Practical Free Exercise Accommodation, 97 YALE L.J. 135, 150 (1987) (criticizing the Court s conclusion as to the unique role teachers play and arguing that this approach ignores the teacher s role as a substitute for a public school instructor and as an employee ); Ellyn S. Rosen, Comment, Keeping the Camel s Nose out of the Tent: The Constitutionality of N.L.R.B. Jurisdiction over Employees of Religious Institutions, 64 IND. L.J. 1015, 1024 (1989) (arguing that the Supreme Court s entanglement analysis was inappropriate and asserting that Board jurisdiction is constitutional). The way in which the Court reached its decision striking down jurisdiction based on the absence of an affirmative intent from Congress has also been criticized. See Christopher M. Gaul, Note, Catholic Bishop Revisited: Resolving the Problem of Labor Board Jurisdiction over Religious Schools, 2007 U. ILL. L. REV. 1505, 1524 27. 52 See Barber-Scotia Coll., Inc., 245 N.L.R.B. 406, 406 (1979) (concluding that the Supreme Court recognized differences between the religious aspects of parochial schools at which the focus is to indoctrinate students with religious beliefs and religiously affiliated institutions of higher education where religious indoctrination is not a primary focus); Stabile, supra note 1, at 1324; Willen, supra note 21, at 45 46. 53 See, e.g., St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *6; St. Joseph s Coll., 282 N.L.R.B. at 68. 54 See Univ. of Great Falls, 278 F.3d at 1339; St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEX- IS 33, at *18. 55 See Manhattan Coll., 2011 NLRB Reg. Dir. Dec. LEXIS 94, at *28; St. Joseph s Coll., 282 N.L.R.B. 68 n.10 (quoting Catholic Bishop, 440 U.S. at 502); Stabile, supra note 1, at 1324 25.

2014] NLRB Jurisdiction over Religiously Affiliated Colleges and Universities 619 In conducting this substantial religious character test, the NLRB analyzes the purpose of the school, the role of the employees in bringing about that mission, and the potential consequences of Board jurisdiction over the institution. 56 When evaluating a school s purpose, the Board analyzes factors such as: (1) the school s mission; (2) the emphasis of the school s religious faith as part of its curriculum; (3) requirements that the faculty teach or support the school s faith; (4) requirements that students take classes teaching the school s faith; (5) the church s or a religious group s financial support of the school; (6) whether the school is governed by the church or a religious group, or must be governed according to the religion associated with the school; and (7) whether the school requires or prefers that administrators, faculty, and students belong to the school s faith tradition. 57 The NLRB s approach to religiously affiliated colleges and universities recognizes that these colleges have a different type of mission than those of parochial schools. 58 The NLRB has noted that unlike in the case of parochial high schools, religious indoctrination is often not the primary purpose of a religiously affiliated college. 59 Under the NLRB s reasoning, there is less likelihood that religion will permeate the area of secular education. 60 Accordingly, faculty members at religiously affiliated colleges tend to play a much less significant role in carrying out their schools religious missions. 61 With this understanding in mind, the Board considers the extent to which a religiously affiliated college or university has a religious mission or curriculum to determine whether jurisdiction over the school and its faculty members would implicate the First Amendment church-state entanglement concerns the Supreme Court warned of in Catholic Bishop. 62 56 Univ. of Great Falls, 278 F.3d at 1339 (quoting Univ. of Great Falls, 331 N.L.R.B. 1663, 1664 (2000), vacated, 278 F.3d 1335 (D.C. Cir. 2002)); Manhattan Coll., 2011 NLRB Reg. Dir. Dec. LEX- IS 94, at *28. 57 See St. Xavier Univ., 2011 NLRB Reg. Dir. Dec. LEXIS 33, at *19 (citing Univ. of Great Falls, 331 N.L.R.B. at 1663, 1664 65; Ecclesiastical Maint. Servs., 325 N.L.R.B. 629, 630 (1998)). 58 See NLRB Brief, supra note 21, at 31 (citing Tilton, 403 U.S. at 687) (stating that unlike the case at parochial schools, religious indoctrination is usually not the purpose of a religiously affiliated college or university); supra note 21 and accompanying text (discussing how the NLRB s jurisdictional test recognizes that religious indoctrination is not a primary purpose of many religiously affiliated colleges and universities). 59 See NLRB Brief, supra note 21, at 31 (citing Tilton, 403 U.S. at 687); supra note 21 and accompanying text. 60 See NLRB Brief, supra note 21, at 31 (citing Tilton, 403 U.S. at 687); supra note 21 and accompanying text. 61 See NLRB Brief, supra note 21, at 31 (quoting Tilton, 403 U.S. at 687); supra note 21 and accompanying text. 62 See NLRB Brief, supra note 21, at 31; see also Catholic Bishop, 440 U.S. at 504 (stating that NLRB jurisdiction over the faculty at parochial schools creates impermissible church-state entanglement); Stabile, supra note 1, at 1328 (stating that, in the best light, the NLRB s test seeks to evaluate whether jurisdiction over the school would implicate church-state entanglement concerns, and

620 Boston College Law Review [Vol. 55:609 C. Following Catholic Bishop, Two U.S. Courts of Appeals Have Rejected the NLRB s Substantial Religious Character Test Following Catholic Bishop, two U.S. Courts of Appeals have refused to enforce the NLRB s exercise of jurisdiction over Catholic universities, reasoning that to do so would violate the principles of Catholic Bishop. 63 In 1986, in Universidad Central de Bayamon v. NLRB, the U.S. Court of Appeals for the First Circuit became the first court to address whether Catholic Bishop applied to religiously affiliated universities. 64 Writing the controlling opinion of the en banc court, then-judge Stephen Breyer concluded that the reasoning in Catholic Bishop also applied to religiously affiliated colleges and universities, even those that are not pervasively sectarian. 65 Judge Breyer reached this conclusion based on four reasons. 66 First, he noted that Catholic Bishop made no distinction between colleges and elementary or secondary schools. 67 Second, he reasoned that concerns relating to church-state entanglement which Catholic Bishop sought to avoid would be no less prevalent in the case of a university. 68 Judge Breyer envisioned Board inquiries into unfair labor practices that could result in investigations arguing that the factors the NLRB considers serve as prox[ies] for focusing directly on the issue of entanglement ); supra note 22 and accompanying text (discussing the NLRB s position that churchstate entanglement concerns are not present when faculty play no role in carrying out their college s religious mission). 63 See Univ. of Great Falls, 278 F.3d at 1337; Bayamon, 793 F.2d at 398 99. 64 See 793 F.2d at 398 99. 65 Id. In an initial hearing before a First Circuit panel in 1985, the court concluded that the NLRB was permitted to exercise jurisdiction over the Catholic university in the case. Id. at 384. In a 2 1 decision, the First Circuit panel declined to extend the reasoning of Catholic Bishop to the university because, from the panel s perspective, the university s religious character was less central to its identity than was the case with the type of religious elementary and secondary schools that Catholic Bishop governed. Id. at 386. To justify this conclusion, the panel cited the lack of a religious mission statement, how religion played no role in the hiring process, how students from all faiths were welcomed, and how students were not required to take classes that inculcated religion. Id. Following the panel s review, the First Circuit, sitting en banc, vacated the panel s decision and reheard the case. Id. at 398 99. Upon rehearing, the six First Circuit judges split evenly on the question of whether Board jurisdiction over the university s lay faculty was appropriate. Id. Because the NLRB brought the matter before the First Circuit seeking to compel the university to comply with the Board s determination, the court s deadlock meant that the NLRB s exercise of jurisdiction would not be enforced. Id. Judge Breyer s opinion for three judges of the en banc court cited several factors explaining why the reasoning in Catholic Bishop applied to the university at issue in the case, including: the role that a Catholic religious order the Dominican Order played in operating and financially supporting the school; the importance of the school s religious orientation to its overall mission; and how the school promoted its Catholic identity. Id. at 399 400. 66 See infra notes 67 76 and accompanying text (laying out these reasons). 67 See Bayamon, 793 F.2d at 401 (citing Catholic Bishop, 440 U.S. at 506 07). 68 Id.

2014] NLRB Jurisdiction over Religiously Affiliated Colleges and Universities 621 into the motives of the school s religious leaders. 69 Because Catholic Bishop warned that Board inquiries into the motives of religious employers could impinge upon First Amendment rights, Judge Breyer saw no reason why this concern did not exist in the context of a religiously affiliated university. 70 Third, Judge Breyer concluded that the rationale of Catholic Bishop would be eviscerated if it were not applied to the university in question. 71 He noted that the Supreme Court in Catholic Bishop rejected the NLRB s earlier completely religious versus merely religious dichotomy because it required the Board to inquire as to the religious nature of the institution, thereby creating church-state entanglement. 72 Judge Breyer stated that the Board s new finely spun standard of evaluating the religious character of the university created the same entanglement concerns that arose in Catholic Bishop. 73 Fourth, Judge Breyer maintained that cases involving aid to religiously affiliated schools were not determinative in this case. 74 Whereas those cases dealt with public funding for religious schools, Bayamon involved government regulation of religious schools. 75 Because NLRB jurisdiction would amount to government regulation of a religiously affiliated school, as was the case in Catholic Bishop, Judge Breyer saw no reason why the outcome of the university s case should differ from the Supreme Court decision. 76 Sixteen years after Bayamon, the federal courts addressed for a second time whether Catholic Bishop applied to religiously affiliated colleges and 69 Id. (quoting Catholic Bishop, 440 U.S. at 502) (stating that issues relating to entanglement arise not only through the conclusions made by the Board, but also in their inquiries into whether an unfair labor practice occurred). 70 Id. Judge Breyer found potential issues involving religion almost completely unavoidable in the context of faculty labor disputes because citing to Catholic Bishop he reasoned that nearly all aspects of a school represent conditions of employment. Id. at 401 02 (quoting Catholic Bishop, 440 U.S. at 502 03) (envisioning these concerns as playing out over disputes regarding the school s curriculum and the ways in which the faculty are instructed to teach, which could involve religious elements). 71 Id. at 402. 72 Id. 73 Id. Judge Breyer also rejected the idea that the Board could avoid First Amendment entanglement concerns by excluding ad hoc certain terms of employment from its review. Id. at 402 03. 74 Id. at 403. The cases Judge Breyer cited involved circumstances in which the government provided aid to religious schools, which led the Supreme Court to address whether this aid constituted state promotion of a particular religion in violation of the Establishment Clause. See id. (citing generally Roemer v. Bd. of Pub. Works, 426 U.S. 736 (1976); Hunt v. McNair, 413 U.S. 734 (1973); Tilton, 403 U.S. 672). 75 Id. 76 Id. In a separate opinion authored by Judge Frank Coffin, three other judges opined that NLRB jurisdiction over the university would not constitute a violation of Catholic Bishop. Id. at 403 04 (Coffin, J., dissenting). Judge Coffin s opinion understood Catholic Bishop as addressing the particular situation of lay faculty at religious primary and secondary schools where the faculty play as servants of the Church in fulfilling the religious mission of the school Id. Thus, under Judge Coffin s framework, Catholic Bishop would apply to colleges and universities only when their objective is the same as those of religious secondary schools: to inculcate faith in their students. Id.